SAFIQURRAHMAN LASKAR AND ORS Vs. MD SAFIUDDIN LASKAR AND ORS
HIGH COURT OF GAUHATI
Safiqurrahman Laskar And Ors
Md Safiuddin Laskar And Ors
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Suman Shyam, J. -
(1.) Heard Mr. G.N. Sahewalla, learned senior counsel assisted by Ms. S. Todi, learned counsel for the appellants. I have also heard Mr. S.P. Choudhury, learned counsel representing the respondents.
(2.) This second appeal has been preferred against the judgement and decree of reversal dated 25/04/2007 passed by the Court of learned Civil Judge No. 1, Silchar in Title Appeal No. 65/2005, allowing the appeal by setting aside the judgement and decree dated 15/09/2005 passed by the Civil Judge (Junior Division) No.1, Silchar in Title Suit No. 39/2003, decreeing the suit filed by the appellants as plaintiffs for specific performance of the agreement for sale (Binanama) dated 03/04/2003. This second appeal was admitted to formal hearing by framing the following substantial questions of law :-
"1. Whether the learned lower appellate Court was justified in reversing the findings of the learned trial court on issue no. 3 without discussing and appreciating the evidence of PWs 1, 2 and 3?
2. Whether the learned lower appellate Court without the aid of the opinion and evidence of handwriting expert was right in holding that the date 3.4.03 (in Bengali scripts) was written by a person other than the scribe and also holding that the words "china diar upora" (above the marks) in the schedule of Ext.1 was written over the thumb impressions of Bilatunnessa?
3. Whether the Judgement of learned lower appellate Court is sustainable in view of the fact that he merely set aside the Judgement of the Trial Court but did not finally decide the fate of the suit?"
(3.) The case of the plaintiffs/appellants, in brief, is that the predecessor in interest of the defendants/respondents, viz. Bilatunnessa had executed a Binanama on 03/04/2003, agreeing to sell the suit land in favour of the plaintiffs, for an agreed price of Rs. 12,000/-. Earnest money for an amount of Rs. 2000/- was paid by the plaintiffs to Bilatunnessa on the date of execution of the Binanama with a condition that the sale deed would be executed within three months on receipt of the balance amount of Rs. 10,000/-. Bilatunnnessa died soon after execution of the Binanama on 03/04/2003 and after her death, when her legal heirs had refused to execute the sale deed as per the terms and conditions agreed to by the parties, the plaintiffs had to institute Title Suit No. 39/2003, inter-alia, praying for a decree of specific performance of contract by directing the defendants to execute the registered deed of sale in favour of the plaintiffs on accepting the balance consideration of Rs. 10,000/- and for other consequential reliefs.;
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